The Supreme Court of Virginia Addresses Commonwealth’s Use of the Defense of Sovereign Immunity When a Contract is at the Center of the Dispute

Wednesday, June 12th, 2024

Article co-written by Andrew Gay, Jeff Southard, and Summer Associate Carter Leverette

In early May, the Supreme Court of Virginia’s decision in Montalla, LLC v. Commonwealth, established some favorable legal precedent for contractors doing business with the Commonwealth of Virginia.[1] Specifically, the Court noted that the Doctrine of Sovereign Immunity cannot be used as a defense by the Commonwealth when a party brings a claim against it based upon a valid contract entered into by a duly authorized government agent.[2] Traditionally, the doctrine of sovereign immunity prevents parties from being able to sue federal or state governments when they are acting within the scope of their governmental authority unless the government consents to being sued. The Court’s finding in Montalla is critical as it clarifies that actions based upon a valid contract renders sovereign immunity inapplicable, making the government liable to suit even without their consent. Additionally, remedies usually barred by sovereign immunity are now available to parties bringing contract claims against the Commonwealth. In this case, the Court held that the plaintiff could seek an equitable remedy against the government (e.g., to seek equitable recission of a settlement agreement)[3] and a statutorily provided remedy even though the statute itself did not expressly waive sovereign immunity.[4]

Montalla, LLC acquired the rights to service contracts that a previous company (NXL) had entered into with the Virginia Department of Transportation (VDOT). During NXL’s dealing with VDOT, VDOT refused to reimburse NXL for overhead costs that the service contracts had initially obligated VDOT to reimburse due to conflicting interpretations of the Federal Acquisition Regulations (FAR). VDOT’s position was that VDOT did not have to reimburse NXL for overhead costs that were not eligible for federal reimbursement. NXL’s position was that although certain overhead costs may not have been eligible for federal reimbursement, the FAR did not forbid VDOT from still reimbursing NXL under the service contracts. Ultimately, NXL began to lose money on the service contracts and was forced into a position where NXL agreed to settle with VDOT for reimbursements far below the original agreed-upon percentage.

During the settlement negotiations, VDOT sought guidance from the Federal Highway Administration (FHWA) on how the FAR provisions in question should be interpreted. The FHWA sided with NXL’s interpretation of the FAR provisions. VDOT planned to adopt the FHWA and NXL’s position as VDOT’s official policy moving forward but intentionally chose to hold off on doing so until it entered a favorable VDOT settlement with NXL. However, VDOT was not forthcoming about this development with NXL and used NXL’s deteriorating financial situation to its advantage. Once NXL caught wind of the FHWA interpretation and VDOT’s policy maneuvering VDOT was unwilling to revisit settlement discussions.

Montalla filed a five count lawsuit against the Commonwealth of Virginia, VDOT, and the Comptroller of Virginia. Montalla sought to rescind the settlement agreement on two claims due to VDOT’s use of its self-induced economic leverage and less than candid dealings with NXL during the settlement negotiations. These first two counts became the focus of the litigation, and the Supreme Court of Virginia’s decision. The first count sought a declaratory judgment that the settlement agreement entered into by NXL was void due to economic duress. Montalla’s second count sought to vacate the settlement agreement pursuant to a Virginia statute, which provided that a court shall vacate any agreement “reached in a mediation … where … [t]he agreement was procured by fraud or duress, or is unconscionable[.]”[5] The third, fourth, and fifth counts were claims that VDOT breached its duty of good faith and fair dealing, material breach of the service contracts, and that VDOT’s actions constituted a regulatory taking without just compensation in violation of Article I, Section 11 of the Constitution of Virginia.

At the trial, the circuit court dismissed the entire complaint, with prejudice, on the grounds that sovereign immunity barred all five counts. Montalla appealed the trial court’s ruling to the Court of Appeals, but its luck didn’t change. The Court of Appeals affirmed the circuit court’s ruling, “concluding that Counts I-III of the complaint were barred by sovereign immunity and that Counts IV-V were barred by the entry of a settlement agreement entered into by the pertinent parties.”[6]

Montalla then appealed its claims to the Supreme Court of Virginia, which stated that the lower courts were correct in that the doctrine of sovereign immunity “is alive and well in Virginia.”[7] However, the court of appeals erred on the basis that “Virginia has ‘never extended th[e] defense [of sovereign immunity] to actions based upon valid contracts entered into by duly authorized agents of the government.’”[8] The Court then reasoned that “ the sole remaining question regarding the Commonwealth’s claim of sovereign immunity is whether Montalla’s claims are ‘based upon valid contracts[.]’”[9] Further reasoning that “it is the nature of the dispute and not the remedy sought that determines whether an action is based upon [a] contract.”[10] If the court must focus on a “duty or obligation” that the plaintiff claims has been breached, then “the nature of the dispute” is based upon a contract.[11]

Diving deeper, the Supreme Court held that the court of appeals erred in applying sovereign immunity to count one (equitable rescission of the settlement agreement) because it did not limit “its focus to the source of the duty allegedly breached, but rather, focused on the nature of the remedy sought.”[12] The Court discussed that while equitable remedies are usually unavailable against the Commonwealth, “equitable contract remedies” must be available against the Commonwealth to prevent it from avoiding “obligations it undertook in validly entered contracts.”[13] As to count two (recission of the settlement agreement pursuant to Va. Code § 8.01-581.26), the Supreme Court once again held that the court of appeals erred in applying sovereign immunity because it “[f]ocused on the remedy sought as opposed to the basis of the action itself[.]” The Court agreed with the appellate court’s reasoning that indeed, “a general statute that does not contain an express waiver of sovereign immunity does not waive the Commonwealth’s immunity.”[14] However, the Supreme Court reasoned that this principle is only applicable if sovereign immunity applies in the first place, which, in a contract dispute, it is not. The Court finally held that the viability of counts three, four, and five would now depend upon the success of counts one and two on remand, which were no longer barred by sovereign immunity.

In conclusion, contractors dealing with the Commonwealth should be aware that when they enter into valid contracts with the Commonwealth, they can hold it accountable for those contracts and seek lawful remedies that may otherwise be unavailable due to sovereign immunity.

[1] Montalla, LLC v. Commonwealth, No. 230364, 2024 Va. LEXIS 28 (2024).
[2] Id. at 15.
[3] Id. at 19.
[4] Id. at 21­­­­­­–22.
[5] Id. at 21 (quoting VA. Code § 8.01-581.26).
[6] Id. at 1.
[7] Id. at 13 (quoting Fines v. Rappahannock Area Cmty. Servs. Bd., 301 Va. 305, 313 (2022)).
[8] Id. at 15 (quoting Wiecking v. Allied Medical Supply Corp., 239 Va. 548, 551 (1990)) (alterations in original). Still, the Court noted that “[t]his is not to say that a party seeking to raise a contractual claim against the Commonwealth or one of its agencies simply may file suit in a circuit court as it would against any other litigant,” a party must follow the procedures established in Va. Code § 8.01-192. Id.
[9] Id. at 17.
[10] Id. at 18.
[11] Id.
[12] Id.
[13] Id. at 19.
[14] Id. at 21–22.

You’ve Been in a Tractor-Trailer Collision. Who is at Fault?

Friday, May 31st, 2024

Tractor-trailer crashes differ from motor vehicle collisions because there are many companies and individuals involved in the transportation and logistics industry, meaning various people or entities may be at fault for causing a catastrophic or fatal truck accident. As Virginia truck accident attorneys, we have noticed that that there are a wide variety of potential defendants in truck crash cases, including, but not limited to: (1) truck drivers, (2) motor carriers, (3) intermodal equipment providers, (4) shippers, (5) brokers, and (6) manufacturers.

Generally, federal and Virginia law only require motor carriers to carry $750,000 in liability insurance, except greater limits are required for motor carriers hauling certain kinds of freight, such as hazardous materials.^[1] When a tractor-trailer is involved in an accident, catastrophic injuries and death often result. Each year in the United States, approximately 5,000 to 6,000 people die in truck crashes, and approximately 155,000 people are injured in truck crashes.^[2] For this reason, $750,000 is commonly insufficient to fully compensate the victim of a truck crash. Therefore, a thorough investigation of your tractor-trailer collision is imperative because failing to identify all potential defendants may significantly limit your recovery in a Virginia personal injury or wrongful death case.

1. Truck Drivers

Truck drivers are regularly at fault for causing tractor-trailer collisions. Most often, truck drivers are responsible because of some sort of negligent operation of the commercial motor vehicle, such as making an improper lane change, failing to maintain proper control, failing to keep a proper lookout, failing to yield the right of way, traveling too fast under the circumstances, etc. However, truck drivers can also be responsible for other types of negligence, like failing to inspect and maintain the tractor-trailer. Federal law requires truck drivers operating in interstate commerce to complete daily driver inspection reports and “[b]e satisfied that the motor vehicle is in safe operating condition” prior to operating any commercial motor vehicle.^[3]

Although the truck driver’s negligence may be the primary cause of a truck accident, other companies or individuals may also bear responsibility. A plaintiff who only sues the truck driver will likely face a limited recovery, especially if there is insufficient or inapplicable insurance coverage and the truck driver does not have any significant personal assets. Thus, it is rare for the truck driver to be the only defendant in a truck accident case.

2. Motor Carriers

A motor carrier is the “person providing motor vehicle transportation for compensation,” which is usually a trucking company.^[4] There are two types of claims that can be alleged against motor carriers in truck crash cases: (1) direct liability claims, and (2) vicarious liability claims. Direct liability claims are those attributable to the motor carrier’s misconduct. For example, a motor carrier may negligently hire or retain a truck driver who has repeated traffic convictions for causing crashes due to his or her reckless driving. On the other hand, vicarious liability claims are those attributable to an employee or agent’s misconduct. For example, a plaintiff can sue a motor carrier for its truck driver’s negligence that occurred in the course and scope of the truck driver’s employment or agency relationship with the motor carrier.

The Federal Motor Carrier Safety Regulations (“FMCSRs”) prescribe many rules and obligations for motor carriers operating in interstate commerce.^[5] If the motor carrier violates the FMCSRs and such violation causes a tractor-trailer crash resulting in personal injuries or death, then the motor carrier may be held liable for negligence per se under Virginia law.^[6] Therefore, it is important to retain a truck accident attorney that is intimately familiar with the FMCSRs.

3. Intermodal Equipment Providers

In the trucking industry, trucking companies often agree to share their equipment through interchange agreements. Intermodal equipment is “trailing equipment that is used in the intermodal transportation of containers over public highways in interstate commerce, including trailers and chassis.”^[7] An intermodal equipment provider is “any person that interchanges equipment with a motor carrier pursuant to a written interchange agreement or has contractual responsibility for the maintenance of the intermodal equipment.”^[8]

The FMCSRs require intermodal equipment providers operating in interstate commerce to “systematically inspect, repair, and maintain” their equipment and keep parts and accessories “in a safe and proper operating condition at all times.”^[9] If an intermodal equipment provider fails to properly maintain its equipment, provides such defective equipment to a trucking company, and the defective equipment causes a crash, then the intermodal equipment provider may be liable for negligently entrusting its equipment to the trucking company. For example, an intermodal equipment provider supplying a trailer with improperly maintained brakes may be liable for negligently entrusting the trailer to another.^[10]

4. Shippers

In some instances, shippers are responsible for truck crashes. The typical situation is where the shipper negligently loads or secures the trailer’s freight. If the freight is improperly loaded or secured, then the load may shift or even fall off, which can lead to a catastrophic truck collision.

5. Brokers

In the trucking industry, shippers regularly hire freight brokers, who act as middle men and are involved in the business of selecting motor carriers to transport the freight. Some courts have recognized that a broker may be liable under Virginia law for negligently hiring an incompetent motor carrier.^[11] This is because readily available information, like statistics published on the United States Department of Transportation’s website, may show that it was well known that the selected motor carrier frequently committed safety violations or hired incompetent drivers. A broker may also be liable if it exercised so much control over the negligent truck driver that it formed a principal-agent relationship. There is currently a disagreement among federal circuit courts about whether certain broker claims are preempted (barred) by the Federal Aviation Administration Authorization Act (F4A).^[12]

6. Manufacturers

Truck and trailer manufacturers may also be responsible for a trucking collision if a part on the truck or trailer was defective and such defect caused the collision. For example, the truck or trailer manufacturer may have negligently manufactured or negligently designed a key component, like the brakes.

Given the wide variety of entities and individuals that may be at fault in a Virginia truck accident case, it is crucial to hire an attorney that specifically focuses on tractor-trailer cases. Gentry Locke has a team of Virginia tractor-trailer accident attorneys with a breadth of knowledge and experience. Contact one of our truck crash lawyers today for a consultation.

^[1] See 49 C.F.R. § 387.9; Va. Code Ann. § 46.2-2143.1(B).
^[2] See Large Trucks, NSC Injury Facts (2024), https://injuryfacts.nsc.org/motor-vehicle/road-users/large-trucks/.
^[3] 49 C.F.R. § 396.11; 49 C.F.R. § 396.13.
^[4] 49 U.S.C. § 13102(4); see also 49 C.F.R. § 390.5.
^[5] See 49 C.F.R. § 390.3(a).
^[6] See McKeown v. Rahim, 446 F. Supp. 3d 69, 76-77 (W.D. Va. 2020).
^[7] 49 C.F.R. § 390.5.
^[8] Id.
^[9] 49 C.F.R. § 396.3(a); see also 49 C.F.R. § 390.40.
^[10] See Hack v. Nester, 241 Va. 499, 504 (1990) (“An owner is negligent if he entrusts his vehicle to another person when the owner knows, or reasonably should know that the vehicle’s condition makes its normal operation unsafe.”); Darnell v. Lloyd, 2016 U.S. Dist. LEXIS 49811, at *10-14 (E.D. Va. 2016) (denying motion to dismiss negligent entrustment claim).
^[11] See Jones v. C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d 630, 642 (W.D. Va. 2008) (“The court agrees that the Virginia Supreme Court would extend the cause of action of negligent hiring of an independent contractor to this situation involving the selection of a carrier by a freight broker.”).
^[12] See Ashley W. Winsky & Jeffrey P. Miller, Transportation Freight Brokers: Argue F4A Preemption but Take Additional Precautions (Nov. 2023), https://www.gentrylocke.com/article/transportation-freight-brokers-argue-f4a-preemption-but-take-additional-precautions/.

What to Do After a Tractor-Trailer Crash

Wednesday, May 29th, 2024

Clients frequently tell us that everything seemed to move in slow motion during a catastrophic crash with a tractor-trailer. The moments leading up to the crash may be blurry, but the crash itself becomes etched in the victim’s brain and often requires the extensive passage of time to fade into the background.

Tractor-trailers can weigh up to 80,000 pounds and are behemoths compared to the average family-owned vehicle. The damage they can cause to a vehicle made of heavy metals is almost incomprehensible. It is therefore no surprise that accidents involving a tractor-trailer frequently result in devastating polytraumatic injuries to victims in smaller vehicles. In fact, National Highway Traffic Safety Administration’s (NHTSA) data shows approximately 6,000 deaths and 150,000 injuries each year in crashes involving large trucks.^[1] Unsurprisingly, the vast majority of those injured are in passenger vehicles.^[2]

In our cases, we have found that the first phone call a truck driver makes after a crash is to his dispatcher, who sets in motion a team of insurance agents, investigator risk managers, and truck accidents attorneys whose sole responsibility is to reduce or eliminate the truck driver’s responsibility for the crash. These individuals commonly reach the scene of the crash before the debris is removed, which provides them a huge advantage over the victims, their families, and their truck accidents attorneys. This article describes the steps you should take after a truck crash to level the playing field.

If you, your family or loved one(s) are involved in a crash involving a tractor-trailer, we urge you to make sure the following is done as quickly as possible, when feasible, and in the order listed below:

1. Assess your injuries and any injuries to those in your vehicle and take immediate action to render first aid as necessary on the scene.
2. As soon as it is safe to do so, call 911 or have someone else contact them and give the exact location of the crash and a preliminary report of the injuries. Don’t hesitate to ask for an ambulance, helicopter, etc.
3. Contact your family/employer/loved one to report the crash and request any aid from them that may be necessary.
4. Do not move your vehicle unless directed to do so by the police.
5. Take or have someone take photos and videos of the scene of the crash, including the position of the vehicles and their relationship to physical objects, such as the side of the road, signage, etc. Take some photos at a fair distance from the crash site to give viewers a better overview of the scene.
6. Take pictures of any obvious injuries at the scene.
7. Once any injuries are stabilized and the accident scene is captured on video and/or in pictures, contact an experienced tractor-trailer/trucking attorney with the necessary resources to send a “go team” to the scene of the crash immediately. That team will be dispatched and preserve crucial evidence, which may determine the facts necessary to prove who was responsible for the crash and what damage was caused to property and people. The team will interview witnesses, inspect and photograph the scene, retain a qualified accident reconstruction expert, and capture aerial photographs if appropriate and necessary.
8. If you are injured in any way, accept the offer of first responders to be transported to a trauma center to evaluate your condition. Truck crashes involve a tremendous amount of energy being transferred from the machinery to the human body. Victims often are injured in ways they don’t first appreciate, but could ultimately be life-threatening. Being checked out by qualified healthcare professionals is crucial.
9. Once you have received appropriate emergency care and your situation is stabilized, begin writing a journal to give to your attorney. The journal should contain all the facts you can recall about and surrounding the accident. Make sure to include details of your experience since the moment of the crash, including any pain you have suffered, emotional trauma, and how the trauma and injuries have affected your life and those around you.
10. As soon as possible, personally meet with your tractor-trailer/truck accidents attorneys and his or her team either at the hospital or some other mutually convenient location to allow them to assess the facts of the crash and your injuries. These meetings are crucial and should occur as soon as possible after the crash.
11. Within a few days of the crash, report the accident to any and all insurance carriers who may insure you or your vehicle. Make the report by phone and follow up by email or letter.
12. Tractor-trailer crashes are far more complicated than any other type of motor vehicle crash and should only be handled by an experienced tractor-trailer/truck accidents attorneys who is knowledgeable about the Federal Motor Carrier Safety Regulations. Also, make sure the attorney has handled similar crashes many times in the past.  When you or your family select your personal injury attorney, make sure to thoroughly vet their biography to ensure they have the qualifications necessary to litigate with a huge insurance company and a sophisticated trucking company.
13. For more information about truck safety concerns, visit the Truck Safety Coalition website.^[3]

At Gentry Locke, we have the “go team” you need to successfully navigate your case. The team includes some of the most experienced truck accidents attorneys in the trucking industry. In addition, we have an in-house investigator, nurses, and paralegals who regularly navigate the complex rules and regulations governing federal motor carrier safety. We are happy to help you when needed. Contact us today to speak with a member of our team. Attorney Matthew W. Broughton is a licensed tractor-trailer driver (CDL holder) and Partner in charge of plaintiff litigation with 39 years of experience handling truck cases.

^[1] Traffic Safety Facts 2021 Data: Large Trucks, Nat’l Highway Safety Admin. (June 2023), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813452.pdf.
^[2] Id.
^[3] Truck Safety Coalition, https://trucksafety.org.

Client Alert: DOJ Announces $2.7 Million Settlement with Insight Global in Latest Cyber-Fraud Enforcement

Friday, May 17th, 2024

In the latest settlement announced by DOJ under its Civil Cyber-Fraud Initiative, Insight Global LLC (Insight), an international staffing and services company, will pay $2.7 million to resolve allegations that it violated the False Claims Act (FCA) by failing to implement adequate cybersecurity measures to protect personal health information (PHI) and personally identifiable information (PII) under its contracts with the Pennsylvania Department of Health (PADOH).

The United States alleged that during the COVID-19 pandemic, PADOH hired Insight Global to provide staffing for COVID-19 contact tracing and paid Insight Global using funds from the U.S. Centers for Disease Control and Prevention. Insight Global understood that personal health information of contact tracing subjects needed to be kept confidential and secure, but it failed to do so.

Despite contractual requirements to keep personal information related to the services provided “confidential and secure” and comply with federal PHI safeguarding obligations, DOJ alleged that:

• PHI and PII of contact tracing subjects was transmitted in the body of unencrypted emails,
• Insight staff used shared passwords to access such information,
• Information was stored and transmitted using Google files that were not password protected and were potentially accessible to the public via internet links,
• Insight failed to provide adequate data security resources and training, and
• Insight ignored staff complaints about unsecure PHI/PII.

While state agency contracts typically do not fall within the scope of the FCA, PADOH used federal funds from the Centers for Disease Control and Prevention (CDC) to pay Insight, bringing the contract within the FCA’s purview. This is the second FCA Civil Cyber-Fraud settlement grounded in a state level contract. Thus, companies contracting with state governments must be aware of the possibility of FCA liability and must prioritize cybersecurity compliance.

The qui tam complaint which initiated this case was filed by Insight’s former Business Intelligence Reporting Manager. DOJ partially intervened in the relator’s claims, and the relator will receive a share award of nearly $500,000, evidencing both DOJ’s inclination to rely on whistleblowers as well as the financial incentives available to insiders with pertinent information. Further, as DOJ regularly points to a failure to remedy cybersecurity vulnerabilities when raised in complaints by employees as part of its alleged FCA violations, businesses must take these compliance complaints seriously.

With a continuous and rapid rise in cyber-attacks, class action suits over improper data protection practices, and government enforcement actions where companies are held liable for fraud based on improper cybersecurity and data protection practices, proactive compliance with privacy and cybersecurity laws is imperative. Particularly when doing business with the government, companies must ensure they are in compliance, both to avoid costly litigation and to build consumer trust.

Lawyers Team Up for Best Result

Monday, May 13th, 2024

Gentry Locke has a long history of associating with other attorneys. Don’t be surprised if/when you call the attorney that represented you in traffic court, drafted your will, or represents your business suggests that he associate Gentry Locke. Over the years, our firm has worked with other law firms who don’t typically handle personal injury cases. Gentry Locke has always associated with other lawyers and law firms in Virginia to give the highest level of service. We often partner with other lawyers in cases involving brain injuries, car accidents, catastrophic injuries, distracted driving accidents, medical malpractice, motorcycle accidents, nursing home abuse, premises liability, spinal cord injuries, truck accidents and wrongful death.

When the attorney you have contacted partners with our firm, you will receive the benefit of our firm’s legal expertise and many resources while also receiving support from your original attorney. We are proud that we are able to offer resources that can be so helpful in successfully resolving a personal injury case. Our resources include:

• A team of experienced attorneys with many years of experience in settling and litigating personal injury cases.
• Two in-house registered nurses – our nurses will help evaluate all of the medical aspects that are involved in medical malpractice cases and the damages stemming from personal injury cases.  Our nurses have many years of nursing experience both in a hospital setting and in private practice.  This experience is invaluable in helping our nurses assist the attorneys in evaluating your claim.
• A full-time private investigator – our investigator will help the attorneys “get to the bottom” of all of the facts in your personal injury case which includes visiting the accident scene and speaking to relevant parties.
• An attorney licensed to operate a tractor-trailer (CDL license).  The addition of an attorney licensed to operate a tractor-trailer to our team gives us insight into how and why a trucking accident occurred.
• Attorneys that are licensed to practice law in multiple states, including Virginia, West Virginia, North Carolina, Tennessee, and the District of Columbia.

So, when the attorney that you first call, who you trust, says they will be associating with Gentry Locke, we hope that you will be pleased.

At Gentry Locke, we are committed to working in association with other law firms.

When our firm is associated with another law firm, this is at no additional cost to you. Both law firms will simply share the original agreed upon fee. So, lawyers teaming up can only benefit you. Our firm will work tirelessly with your attorney using all of our resources to achieve the best result for you.  

You’ve Been Injured by a Defective Product – Now What?

Wednesday, May 8th, 2024

Introduction

If you have been injured or a family member killed by a defective product, you may have what is known as a “products liability” case and you should contact a Virginia personal injury attorney/Virginia wrongful death attorney as soon as possible. You must file a products liability lawsuit within the statute of limitations which is usually two years of the date of the incident.

Types of Product Liability Cases

Products liability cases apply to a wide range of items in the marketplace. These include household items, industrial equipment (typically a work-related injury), motor vehicles, all terrain vehicles, drugs and food, just to name a few. Products liability cases determine the legal responsibility arising for personal injury or death caused by a defective product sold or leased in the marketplace. The defect in the product may be a design defect or a manufacturing defect. 

There is not a uniform nationwide body of law relating to products liability cases. Rather, the states have developed their own versions of products liability law. Accordingly, contacting a Virginia products liability lawyer may be crucial to a successful prosecution of your case.

Who Might be at Fault in a Products Liability Case

Potential defendants in a products liability case include any party or combination of parties in the chain of commerce from manufacturers to wholesalers to retailers and potentially others. Your lawyer will determine which parties should be sued in your products liability case.

Elements to a Products Liability Case

Generally speaking in Virginia, there are four elements to a products liability case:

(1) A product which was sold or leased;

(2) A design or manufacturing defect in the product which was sold or leased;

(3) Personal injury or death; and

(4) The defect in the product was a substantial cause of the injury or death.

Recovery in a products liability case is dependent upon the person who has been harmed proving that a product, as designed and manufactured, is unreasonably dangerous for its reasonably foreseeable use. Typically, products liability causes of action include negligent design or manufacture, negligent failure to warn and breach of warranty claims (implied warranty of merchantability, implied warranty of fitness for a particular purpose, express warranty, etc.).

Preserving Evidence

Products liability cases tend to be very technical and preserving evidence from the outset relating to the defect in the product is critical. Unavailability of the relevant product, whether it was discarded, destroyed or altered in any way either intentionally or unintentionally, can create significant obstacles to pursuing a products liability claim. 

It is of utmost importance that the relevant product be preserved as soon as possible. If the product is currently in your control, your attorney will take possession of the product and store it in such a manner that it is preserved for future use as evidence in the case. 

However, if you are not in possession of the defective product, your attorney will send “preservation letters” (a letter stating that it would be improper to destroy or alter the product) to whoever maintains custody and control over the relevant product. Such a preservation letter creates a legal obligation for the custodian to safeguard the product for future use as evidence in the case.

Experts and Investigation

One of the first things your lawyer will do is to retain an expert or experts on the product that caused the injury or death. The expert(s) will assist you and your lawyer in establishing that the product was defective and that the defect was a substantial cause of the injury or death.

Your lawyer will also collect all medical records and medical bills relating to the incident. Your attorney may also meet with your healthcare providers to better understand the exact nature of the injuries/prognosis or death. 

Damages in Product Liability Cases

In a products liability personal injury case, the Plaintiff may recover damages for past and future medical expenses, past and future pain and suffering, emotional distress, embarrassment, humiliation, inconvenience, loss of past and future earning capacity, and permanent disability or disfigurement.

In a products liability wrongful death case the beneficiaries (usually close family members) of the decedent are entitled to recover damages. The beneficiaries are entitled to be compensated for any sorrow, mental anguish, and loss of solace. Solace may include society, companionship, comfort, guidance and advice of the decedent. The beneficiaries are entitled to recover any reasonably expected loss of income of the decedent from which they may have benefited. Beneficiaries may also recover for loss of services, protection, care, and assistance from the decedent. Finally, the beneficiaries may be entitled to recover any expenses for the care, treatment and hospitalization of the decedent concerning the injury resulting in the death as well as reasonable funeral expenses.

Fighting Corporations and Insurance Companies

Products liability cases are very expensive to prosecute and most individuals do not have the funds necessary to litigate against large corporate defendants and/or insurance companies. Because of this, Gentry Locke typically covers all expenses associated with the products liability litigation. Generally, Gentry Locke is then reimbursed for these expenses if a favorable recovery is obtained.

Conclusion

Bottom line, if you have been injured, or a loved one killed, by what you believe to be a defective product, you should contact a Virginia lawyer as soon as possible to protect your rights and interests.

Client Alert: DOJ Whistleblower Pilot Program

Tuesday, May 7th, 2024

The Department of Justice (DOJ) Criminal Division recently unveiled its Whistleblower Pilot Program, signaling a pivotal shift in the landscape of corporate enforcement and accountability. The program is slated to take effect “later this year.”

Here’s why you should take notice:

1. A New Era of Incentives

The DOJ recognizes that people and corporations respond to incentives. The carrot-and-stick approach, previously seen in the DOJ’s Voluntary Self-Disclosure Program for corporations, now extends to individual whistleblowers.

In this spirit, the Whistleblower Pilot Program aims to reward individuals who come forward with significant corporate or financial misconduct that the government is not yet aware of.

2. Financial Rewards for Whistleblowers

Under the pilot program, individuals who provide credible information about “significant corporate or financial misconduct” can receive financial rewards. These rewards will be carved out of forfeiture funds obtained through successful prosecutions.

Importantly, payments will be made only after victims have been properly compensated.

3. Expanding the Regulatory Regime

Unlike many existing whistleblower programs (such as those run by the SEC and CFTC), the DOJ’s program reaches beyond heavily-regulated entities. It targets privately held companies that have, in the past, skillfully navigated safe harbor provisions.

This means that even companies not directly overseen by regulatory agencies like the SEC or CFTC must now pay closer attention to their compliance practices.

4. Four Key Criteria for Rewards

For the DOJ to pay a financial reward to a whistleblower under the pilot program, four specific criteria must be met.

First, the information provided must not already be known to the government. The DOJ has indicated that it is “especially interested” in information about financial crimes and both domestic and foreign corruption, including Foreign Corrupt Practices Act violations.

Second, the whistleblower must not be involved in the criminal activity.

Third, there must be no existing financial disclosure incentives (such as qui tam litigation under the False Claims Act) for the whistleblower.

And fourth, all victims must be compensated first.

5. Action Steps

The DOJ has indicated that the Whistleblower Pilot Program will formally start “later this year.” In the meantime, corporations will want to take the following action steps to prepare.

Review Internal Reporting Mechanisms: Ensure robust internal channels for reporting misconduct. Encourage employees to speak up internally without fear of retaliation.

Strengthen Compliance Programs: Regularly assess and enhance compliance policies, training, and monitoring.

Seek Legal Guidance: Consult with legal counsel to navigate the complexities of the program and protect your organization.

In summary, the DOJ’s Whistleblower Pilot Program demands vigilance. By proactively addressing compliance and fostering a culture of transparency, you can mitigate risk by ensuring that you find and report misconduct before the DOJ learns about it from a whistleblower.

FTC Seeks to Impose Ban On Noncompete Restrictions on Employees

Wednesday, April 24th, 2024

On April 23, 2024, the Federal Trade Commission (“FTC”) issued a Final Rule which provides that it is an “unfair method of competition” for employers to enter into non-compete clauses with their workers after August 21, 2024—or 120 days after the Final Rule is published in the Federal Register.  The Final Rule is available here.  The Final Rule was issued after the FTC received more than 26,000 public comments in response to its Notice of Proposed Rulemaking issued in January 2023.

While the ban is scheduled to take effect 120 days after the Final Rule is published in the Federal Register, there will be attempts to prevent the new rule from becoming effective. Notably, the U.S. Chamber of Commerce (a business advocacy group that is not affiliated with the Federal government), has already announced plans to file a lawsuit challenging the Constitutionality of the ban.  Thus, it is foreseeable that the ban could be enjoined from taking effect, even if it is ultimately upheld (or struck down).

Nonetheless, it is worth highlighting some of the key aspects of the Final Rule.

The Final Rule defines “non-compete clause” as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from (1) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (2) operating a business in the United States after the conclusion of the employment that includes the term or condition.”  16 CFR § 910.1.  The final rule further provides that, for purposes of the final rule, “term or condition of employment” includes, but is not limited to, a contractual term or workplace policy, whether written or oral.  Id.  The Final Rule further defines “employment” as “work for a person.”  Id.

The Final Rule defines “worker” as “a natural person who works or who previously worked, whether paid or unpaid, without regard to the worker’s title or the worker’s status under any other State or Federal laws, including, but not limited to, whether the worker is an employee, independent contractor, extern, intern, volunteer, apprentice, or a sole proprietor who provides a service to a person.”  Id.  The definition further states that the term “worker” includes a natural person who works for a franchisee or franchisor, but does not include a franchisee in the context of a franchisee-franchisor relationship.  Id.

The Final Rule does not apply to non-competes entered into by a person pursuant to a bona fide sale of a business entity.  16 C.F.R. § 910.3(a).  In addition, as an important distinction, the Final Rule does not apply to business-to-business non-compete clauses (for example, a non-compete that restricts two companies from selling goods within overlapping territories).  Instead, the Final Rule only bans the use of non-competes by an employer to restrict competition by its employees.

The broad ban contained in the Final Rule would supersede Virginia’s ban on non-compete for “low wage employees” which voids non-competes between an employer and any employee making less than $73,320.  See this previous Gentry Locke article to learn more on non-competes for “low wage employees.”  In addition, the Final Rule could bar the use of non-disclosure agreements that are so overbroad as to function to prevent a worker from seeking or accepting employment or operating a business, as well as agreements for deferred compensation and other structured payments that fall within the definition of non-compete clause in § 910.1.

This story is developing, and for those interested, you may want to check out our firm’s initial reports on this new noncompete ban and enforcement actions that occurred last year. Read more on these topics below.

• FTC’s Proposed Rule to Ban Noncompete Agreements – Initial Reactions
• FTC Wastes No Time– Takes Enforcement Action While Proposing Nationwide Rule to Invalidate Noncompete Agreements

Planning for Success: Jury Instructions in Civil Cases

Wednesday, April 17th, 2024

Republished with permission of the Virginia State Bar.

Relatively few civil cases are tried to verdict these days, so jury instructions may almost be an afterthought in the minds of many litigators. Of the cases that are tried, many are repetitive type cases in which an experienced litigator likely knows the instructions by heart, and can recite them – so jury instruction issues are almost incidental. But for cases that veer from that track, and for newer lawyers, jury instructions should be a very significant factor throughout the entire case from start to finish. Knowing your ultimate desired instructions is critical to case strategy, case valuation, and framing discovery and evidence for trial. They are the blueprint for the development and presentation of evidence that will hopefully lead to the desired verdict. So, this is a reminder to think about jury instructions early, craft them carefully, and know how to properly challenge the trial court’s decisions in charging the jury if those determinations do not go your way.

Frame the Case.

The pleadings in a case by no means fully shape the issues. Virginia notice pleading standards are generous, and even the stricter federal standards do not require a plaintiff to allege every fact and facet of his or her case at the outset. So too, a defendant need not assert every aspect of its defense in an answer. As a result, these mechanisms do not necessarily encourage lawyers to think fully and critically about the case at its inception, or how best to frame it under the law. That is where drafting jury instructions early-on can serve a valuable purpose. Engaging in the exercise of preparing the framework of your case in the jury instructions requires formulating both structure and strategy, each of which will impact the case as it moves forward. Early formation allows you to structure discovery around the central points in your anticipated instructions. Even if the case does not go to trial, boxing-in the opponent regarding the ultimate issues relevant to the legal instructions will often lead to a better settlement. And even if you are not focused on jury instructions, the odds are that your opponent is, even as he or she plans a Motion to Strike or Motion for Judgment as a Matter of Law.

In some cases, the Virginia Model Jury Instructions may suffice. In more complicated cases, you may be able to unearth instructions given in prior cases involving similar issues or claims reflecting how others framed the same issues (with or without success). That prior art may or may not be good or helpful. However, the temptation to seize on something that has already been used in a prior case is substantial – particularly if it’s a last minute item as you are otherwise swamped with trial and or preparation. Be mindful.

Bear in mind that this process is fluid. Issues in the case will likely develop and evolve as the matter progresses. Some may die on the vine, or the court may issue rulings that clarify what theories are viable. Cases where your opponent frequently shifts positions/theories or the court declines to define the legal boundaries are the most challenging, and make your framing the case for the jury even more critical to your chances of success at trial or settlement.

Take the Time. Instructions Can Win or Lose Your Case.

First and foremost, jury instructions should accurately state the law and have adequate legal support. However, seasoned litigators know that there are multiple ways to express the same “law.” We have all read proposed jury instructions that are either pro-plaintiff or pro-defendant. Obviously, you will frame your proposed instructions based on the desired outcome – but be aware that your opponent will do the same. It is remarkable how the same “law” can be stated with bias towards or against each side.

The Virginia Model Jury Instructions serve as ready references and guides; they may be used as templates for many instructions – particularly common instructions necessary in most cases. Trial judges are also generally more comfortable with adopting an instruction taken from the Model Instructions. However, the Model Instructions are by no means the answer in every instance. Do not be afraid to propose an instruction that differs from one taken from the Model Instructions.[1]

Judges in both state and federal courts have the discretion to issue tailored instructions that fit the precise issues and theories in a case.[2] Compare the following:

A. “There is a legal presumption that directors are shielded from liability in the performance of their duties if they were informed and acting in good faith”

B. “The law requires you to presume that the directors made “X” decision based on the information that they had available in good faith, and with the honest belief that their decision was in the best interests of the company.”

Instruction (A) and Instruction (B) are each accurate statements of law, but which helps your client’s position? Instruction (A) is phrased more in the abstract, uses legal jargon, is somewhat passive, and is not particularly understandable by a modern juror. Instruction (B) provides a directive that the jury is oath-bound to follow and keeps the focus on the transaction at issue. The lawyer proposing Instruction B can also use the directives of the instruction to inspire the questions to key witnesses during trial. That lawyer can then remind the jury of that precise and targeted line of questioning during closing – which also highlights the terms of the court’s instruction.

There will often be circumstances in which there is no Model Instruction, or where the law is unsettled or under-developed. In these instances, you will need to locate the prevailing authority (statutory and case law) and perhaps law from other jurisdictions. Do not be reluctant to blend and distill the mix of authorities into a clear explanation of the critical legal point. And while it is sometimes tempting to “guild the lily” when creating instructions from scratch, bear in mind that state appellate courts review instructions carefully, and improper instructions are often a basis for reversal. Make every effort to state the law clearly and correctly.

In complex cases, particularly those involving burden shifting, presumptions, or significant affirmative defenses, tailored finding instructions and special interrogatories/verdict forms can be useful. They offer the chance to “bookend” the trial with a recitation of the issues as your side sees them, taking a juror through every step of the analysis that he/she must undertake. In this respect, a finding instruction or verdict form pushes the jury to be more precise in their thinking – and not simply base their decision on general assessments or impressions. For both parties, these ultimate instructions provide a significant chance to reiterate the opposing party’s burdens of proof on the particular issue. Trial courts have ample discretion to craft instructions to the facts and issue in the case.[3]

Special verdict forms can also have important implications on appeal because they reveal the actual thought process of the jurors. In Virginia courts, jurors are presumed to have followed all of their instructions unless the record plainly shows otherwise.[4] And where the record does not demonstrate whether the jury relied on an erroneous instruction in reaching its verdict, the error is presumed harmful to the appellant.[5] Depending on which side you are on, you may prefer a general verdict form, which provides no indication of the precise grounds on which the jury reached its decision, and offers limited insight into the jury’s deliberation. But that comes with costs as well. When there is no way to discern whether the jury decided the case relying on a bad instruction, Virginia appellate courts will presume so unless the contrary is clear from the record.

Finally, remember that the entire jury charge matters, particularly on appeal in Virginia state courts. A reviewing appellate court will read and consider the jury instructions together, as a whole.[6] Accordingly, each instruction that you prepare warrants some discernment regarding both the wording of the individual instruction and how it fits within the other instructions.

Know Your Audience; Strike the Right Balance.

Drafting jury instructions is not a natural talent for lawyers. We are trained in legal writing – that is, to create a written advocacy product that other lawyers or judges with similar training will read and understand. Jury instructions are for a completely different audience that likely has no base knowledge and no real understanding of the terminology. This reality requires use of plain language that someone without any legal training can understand — without losing the core legal directive. And, the lawyer also must do it in a way that the trial judge finds acceptable. Serving these two masters is not always easy.

The trial judge has ample discretion to determine the form and content of its instructions.[7] The fundamental aim of an instruction should be to inform the jury fully and fairly about the law applicable to the particular facts of a case.[8] That base purpose should guide the tone, tenor, and approach of any proposed instruction. Think of an instruction as the architecture for advocacy, but not an advocacy document. If you are successful, you will use the instruction as a springboard to explain to the jury precisely why it must return a verdict in favor of your client. But a zealous or aggressive approach within the instruction will undoubtedly provoke an objection, engender close scrutiny from the court, and may result in the court’s refusal of the instruction. Instructions should not attempt to assume facts, make factual findings, or blatantly lead the jury to a particular conclusion.[9]

Basic phrasing within the instruction can matter as well. For example, a proposed instruction that tells the jury that “you must first consider ‘x.’ If you find ‘x,’ then you may consider ‘y’” is not likely to draw criticism. By contrast, an instruction with the same upshot, but phrased more prohibitively – “you cannot consider ‘y’ unless you have found ‘x.’ Only after you have found ‘x’ can you consider ‘y’” – is more likely to prompt scrutiny from the court or the other side. The more aggressive approach also renders the instruction somewhat confusing by starting with a reference to “y” before even discussing “x.” While the other side may have proffered an even more argumentative (or slanted) instruction on the matter and there might be little to lose and more to gain by proposing a more aggressive instruction, do not sacrifice clarity in the process.

Clarity and conciseness are key when it comes to the jury. For example, in a corporate case involving claims for breach of fiduciary duty, the business judgment rule doesn’t do the defense any good if the jury instruction doesn’t explain, in simple, clear language, what the rule is, what it does, and why it matters. So too, the volume and length of the instructions can matter. Burying a juror under reams of lengthy instructions can be counterproductive and create more confusion than clarity, and may also be viewed as prejudicial.[10]

Be Flexible.

In civil cases, Virginia law requires “the parties to furnish the trial court with proper and appropriate instructions that address their respective theories of the case.”[11] Always ensure that the case scheduling order contains a provision requiring the parties to exchange initial proposed jury instructions at a point before the last pre-trial conference. That said, it is impossible to foresee every issue that may arise at trial and submit an instruction on each point. In fact, it is often the case that, at the close of the evidence, you will find that you will want to submit additional instructions on particular issues or theories. The Federal Rules expressly authorize a party to propose instructions “on issues that could not reasonably have been anticipated by an earlier time the court set” or otherwise “with the court’s permission[.]”[12] Both matters are left to the discretion of the district court, but be aware that the court may bar the submission of an instruction on an issue that was foreseeable but not raised in the instructions previously submitted.[13]

While a Virginia court can only instruct the jury only on principles that find sufficient support in the evidence,[14] that is a relatively generous standard. The evidence presented in support of a particular instruction need only surpass a scintilla.[15] Moreover, in reviewing a trial court’s refusal to grant a proffered jury instruction, an appellate court will examine the evidence in the light most favorable to the proponent of the instruction.[16] And if a proffered instruction finds any support in credible evidence, its refusal is reversible error.[17] The upshot: plan to propose additional instructions to the court after the close of the evidence, and be aggressive in covering any additional matters that could warrant instruction. By the same token, you should object (on the record) to instructions offered by your opponent when the instructions are not warranted by the evidence.

Preserve Error.

The waiver doctrine is alive and well in the appellate courts when it comes to appeals of jury instructions.[18] In Virginia courts, “instructions given without objection become the law of the case and thereby bind the parties in the trial court and [the appellate court] on review.”[19] Similarly, the failure to request an instruction or the failure to proffer an instruction alternative to the instruction adopted by the trial court precludes assigning error on such grounds on appeal.[20]

Jury instruction issues typically find less traction in Federal appeals. Even so, an appellant may assign error to an instruction or the court’s refusal to give a requested instruction only if an objection was properly lodged.[21] The limited exception to the preservation rule is a “plain error” in the instruction that “affects substantial rights.”[22] Such instances are few and far between, however, because the error must have been clear and obvious, and affected the outcome of the trial court proceeding to the detriment of the appellant.[23] Accordingly, take every precaution to ensure that objections are timely made and the error is well-preserved at the appropriate time before the jury is charged.

Under the Federal Rules, the trial judge must allow parties the opportunity to object to the instructions it intends to give,[24] but the objecting party “must do so on the record, stating distinctly the matter objected to and the grounds for the objection.”[25] Similarly, Virginia appellate courts apply the contemporaneous objection rule, which requires an objection be stated with reasonable certainty at the time of the ruling.[26] In all events, the circuit court must have the opportunity to “rule intelligently” on a party’s objections.”[27]

The problem is, the circumstances in which the trial court considers proposed instructions and hears related argument/objections can vary. Always include a provision in the case scheduling order requiring the parties to serve objections to the initial jury instructions that have been proposed. Then, ensure that the proposed instructions and objections are made a part of the record at the hearing when instructions and associated objections are argued. The use of written objections allows a party to stake out its position on a particular instruction for the trial court’s consideration, and provides the groundwork and reminder to ensure that objections to the trial court’s jury instruction determinations are preserved.

Frequently, argument over instructions can occur in the evening after a full day of trial, and perhaps not even in the courtroom or with a court reporter present. Additionally, the court may not fully or clearly explain precisely what instructions it intends to give. These are avenues to waiver.[28] Accordingly, ensure that (1) the court reporter is not excused for the day until jury instruction argument concludes; (2) the court articulates its rulings on objections and the instructions that it intends to give; and (3) objections to those rulings and instructions are made and preserved on the record. Mark any rejected instructions as proposed and rejected. They should become part of the record.

Know the Standards of Review on Appeal.

Appellate courts are typically loathe to overturn a jury’s decision, and many avenues of appeal involving civil jury trials are curtailed by deferential standards of review. Appeals of jury instruction issues are no different. In both Virginia and the Fourth Circuit, a trial court’s decisions in giving or refusing proposed instructions are reviewed for an abuse of discretion.[29] However, whether an instruction accurately states applicable law is subject to de novo review.[30] Accordingly, how the instruction issue is framed on appeal may make all the difference in the level of scrutiny that it receives. Does the error in the instruction lie in the trial court’s use of certain words or phrases in the instruction [abuse of discretion standard]? Or, is the legal principle stated in the instruction wrong [de novo review]? These issues may go hand-in-hand, but not always. On appeal, think carefully in describing where the error lies with regard to a particular instruction.

In Virginia, the issue of whether an instruction finds support in more than a scintilla of evidence is also reviewed de novo.[31] While seemingly a low threshold, Virginia appellate courts have declined to establish a precise definition of “scintilla,” choosing instead to resolve the issue case-by-case, viewing the evidence at trial in the light most favorable to the proponent of the instruction.[32] There have been cases in which this standard was not met,[33] but on balance, it seems more likely that error may lie the trial court’s refusal to give an instruction – rather than in its decision to give an instruction – so long as the instruction is not duplicative or cumulative.[34]

Conclusion.

Presenting your case to the jury comes with seemingly endless potential risks. That is as evident in the jury instruction process as any other part of trial. But you can use the instructions to your advantage when you know and use those jury instructions early-on to then structure and shape the case through trial. And at trial, never assume that the jury will understand the instructions. Get them out and argue the most important ones as part of your closing. Explain what the terms and concepts mean and why your client must win. And in appropriate circumstances (e.g., where the jury may be biased in favor of the opposing party), you may need to remind the jury of its oath to faithfully apply the law as instructed. Most jurors will not blatantly fail to do so – even if they don’t like the result.

[1] See Va. Code § 8.01-379.2 (“[a] proposed jury instruction submitted by a party, which constitutes an accurate statement of the law applicable to the case, shall not be withheld from the jury solely for its nonconformance with the model jury instructions”); Harman v. Honeywell Int’l, Inc., 288 Va. 84, 104, 758 S.E.2d 515, 527 (2014) (“an instruction may not be withheld from the jury solely because it varies from the model instruction”).
[2] Commonwealth v. Barney, 884 S.E.2d 81, 86-87 (Va. Ct. App. 2023) (“a trial court has the discretion to give tailored instructions to focus a jury on specific contested issues”); United States v. Bosket, 356 F. App’x 648, 651 (4th Cir. 2009) ([j]ury instructions should be drawn with reference to the particular facts of the case on trial, because abstract instructions that are not adjusted to the facts of a particular case may confuse the jury . . . Different factual situations obviously call for different degrees of particularity . . . and the choice of generality versus specificity in the charge is a matter left to the sound discretion of the trial courts.”) (internal quotations omitted).
[3] Benjamin v. Sparks, 986 F.3d 332, 346 (4th Cir. 2021);  Prieto v. Commonwealth, 278 Va. 366, 407, 682 S.E.2d 910, 932 (2009) (noting “the circuit court’s discretion in tailoring verdict forms to the issues presented in a particular case”).
[4] Gillam v. Immel, 293 Va. 18, 26, 795 S.E.2d 458, 463 (2017); Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 537, 636 S.E.2d 416, 426 (2006); Gravitt v. Ward, 258 Va. 330, 337, 518 S.E.2d 631, 635 (1999).
[5] Johnson v. Raviotta, 264 Va. 27, 39, 563 S.E.2d 727, 735 (2002); see also Cain v. Lee, 290 Va. 129, 136,  772 S.E.2d 894, 897 (2015); Clohessy v. Weiler, 250 Va. 249, 254, 462 S.E.2d 94, 97 (1995).
[6] United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 382 (4th Cir. 2015); Hawthorne v. VanMarter, 279 Va. 566, 586, 692 S.E.2d 226, 238 (2010).
[7] Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 233 (4th Cir. 2016) (“a trial court has broad discretion in framing its instructions to a jury”) (quotation omitted); Shaikh v. Johnson, 276 Va. 537, 546, 666 S.E.2d 325, 329 (2008) (“[t]he burden is on the proponent of a jury instruction to satisfy the trial court that the proposed language is a correct statement of the law, applicable to the facts of the case on trial, and expressed in appropriate language”).
[8] See Hawthorne, 279 Va. at 586, 692 S.E.2d at 238.
[9] See H.W. Miller Trucking Co. v. Flood, 203 Va. 934, 937, 128 S.E.2d 437, 440 (1962) (“[a]n instruction which is confusing, argumentative, long, and merely an attempt on plaintiff’s part to have the court apparently agree with his theory of the case should be refused”); Hardin v. Ski Venture, 50 F.3d 1291, 1294 (4th Cir. 1995) (jury instructions may not “effectively direct a verdict for one side or the other”).
[10] H.W. Miller Trucking, 203 Va. at 937, 128 S.E.2d at 440 (“[t]he piling of instruction upon instruction does not help a jury, and treads close upon the heels of invited error”); Holmes v. Commonwealth, 76 Va. App. 34, 53, 880 S.E.2d 37, 46 (2022) (rejecting a duplicative instruction that “would inappropriately single out for emphasis a part of the evidence tending to establish a particular fact . . . and would be confusing or misleading to the jury”) (internal quotations omitted).
[11] Honsigner v. Egan, 266 Va. 269, 275, 585 S.E.2d 597, 601 (2003).
[12] Fed. R. Civ. P. 51(a)(2)(A)-(B).
[13] See, e.g., Potthast v. Metro-North R.R., 400 F.3d 143, 153-54 (2d Cir. 2005).
[14] Pollins v. Jones, 263 Va. 25, 28, 557 S.E.2d 713, 714 (2002); Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 55, 710 S.E.2d 736, 740 (2011); see also Rosen v. Greifenberger, 257 Va, 373, 380, 513 S.E.2d 861, 864-65 (1999) (a “trial court should give a jury an instruction that, while a correct statement of the law as an abstract proposition, is inapplicable to the facts of the case”).
[15] Dorman v. State Indus., 292 Va. 111, 125, 787 S.E.2d 132, 141 (2016); Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78, 597 S.E.2d 43, 45 (2004).
[16] Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185 (2009); Honsinger, 266 Va. at 274, 585 S.E.2d at 597 (citation omitted).
[17] Holmes v. Levine, 273 Va. 150, 159, 639 S.E.2d 235, 239 (2007).
[18] Va. Sup. Ct. R. 5:25; Va. Sup. Ct. R. 5A:18; Belk, Inc. v. Meyer Corp., 679 F.3d 146, 153 n.6 (4th Cir. 2012) (appellant waived challenge to jury instruction by “neglecting to make timely and sufficient objections to the court’s charge below”).
[19] Wintergreen Partners v. McGuireWoods, 280 Va. 374, 379, 698 S.E.2d 913, 916 (2010) (quotation omitted); Ulloa v. QSP, Inc., 271 Va. 72, 80, 624 S.E.2d 43, 48 (2006) (stating that the appellant “is bound by his agreement to the jury instructions given to the jury as the law of this case”).
[20] Dorman, 292 Va. at 125, 787 S.E.2d at 141; Holles v. Sunrise Terrace, Inc., 257 Va. 131, 138, 509 S.E.2d 494, 498 (1999).
[21] Fed. R. Civ. P. 51(d)(1)(A)-(B) (a party may assign error to an instruction actually given, if that party properly objected, or to the refusal to give an instruction if the party properly requested it and – unless the court rejected the request in a definitive ruling on the record – also properly objected); see United States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 912 F.3d 731, 737 (4th Cir. 2019).
[22] Fed. R. Civ. P. 51(d)(2); Gregg v. Ham, 678 F.3d 333, 338 (4th Cir. 2012) (to obtain reversal on plain error review, a defendant must show that (1) an error was made; (2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings).
[23] United States v. Said, 26 F.4th 653, 660 (4th Cir. 2022); United States v. Walker, 934 F.3d 375, 378 (4th Cir. 2019) (quotation marks omitted).
[24] Fed. R. Civ. P. 51(b)(1)-(2).
[25] Fed. R. Civ. P. 51(c)(1) (objections to the jury instructions must state “distinctly the matter objected to and the grounds for the objection”); Mattison v. Dallas Carrier Corp., 947 F.2d 95, 112 (4th Cir. 1991) (“to preserve an objection to the instructions to the jury, a party is required to point out specifically the nature of the objection”) see also Pogue v. Retail Credit Co., 453 F.2d 336, 338 (4th Cir. 1972) (“under Rule 51 of the Federal Rules of Civil Procedure, a party may not object to instructions given or not given to the jury unless the party objects before the jury retires”).
[26] Nusbaum v. Berlin, 273 Va. 385, 402, 641 S.E.2d 494, 503 (2007) (“Under Rule 5:25, we will not sustain error to a ruling of a trial court ‘unless the objection was stated with reasonable certainty at the time of the ruling’”) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)).
[27] Johnson, 264 Va. at 33, 563 S.E.2d at 731.
[28] See Bunn v. Oldenforff Carries GMBH & Co. v. KG, 723 F.3d 454, 468 (4th Cir 2013) (appellee failed to preserve a challenge to the jury instructions” because it “provided no record of an objection to the district court”); Faigin v. Kelly, 184 F.3d 67, 87 (1st Cir. 1999) (appellant’s “fail[ure] to supply a transcript of the Rule 51 sidebar conference” gave rise to a “presumption that none of his challenges to the jury instructions were properly preserved”); Maltby v. Winston, 36 F.3d 548, 560 (7th Cir. 1994) (finding that the appellant had failed to preserve his challenge to jury instructions because “the instruction conference in the district court was not memorialized in the record,” and the appellant had not otherwise “ma[d]e a sufficient record”).
[29] Holmes v. Commonwealth, 76 Va. App. 34, 53, 880 S.E.2d 37, 46 (2022); Gentry, 816 F.3d at 233.
[30] Gentry, 816 F.3d at 233; Harman v. Honeywell Int’l, Inc., 288 Va. 84, 103, 758 S.E.2d 515, 526 (2014); Smith v. Kim, 277 Va. 486, 491, 675 S.E.2d 193, 196 (2009); Hancock-Underwood v. Knight, 277 Va. 127, 131, 670 S.E.2d 720, 722 (2009).
[31] Harman, 288 Va. at 103, 758 S.E.2d at 526.
[32] See, e.g., Witherow v. Commonwealth, 65 Va. App. 557, 565, 779 S.E.2d 223, 227-28 (2015); Holmes, 273 Va. at 159, 639 S.E.2d at 239.
[33] See, e.g., Sullivan v. Robertson Drug Co., 273 Va. 84, 93-94, 639 S.E.2d 256-57 (2007) (circuit court erred in giving instruction on the reasonableness of settlement); Monahan v. Obici Med. Mgmt. Servs., 271 Va. 621, 635-37, 628 S.E.2d 330, 338-39 (2006) (trial court erred in giving unsupported mitigation of damages instruction).
[34] See, e.g., Dorman v. State Indus., 292 Va. 111, 125-26, 787 S.E.2d 132, 140-41 (2016) (affirming trial court’s decision to give superseding cause instruction); Burns v. Gagnon, 283 Va. 657, 677-78, 727 S.E.2d 634, 646-47 (2012) (circuit court erred in refusing to instruct the jury on gross negligence); Holmes, 273 Va. at 158-160, 639 S.E.2d at 239-40 (circuit court erred in refusing to give proffered proximate cause instruction); Schlimmer, 268 Va. at 78-80, 597 S.E.2d at 45-46 (trial court erred “in refusing to instruct the jury on the doctrine of negligence per se”); Price v. Taylor, 251 Va. 82, 86, 466 S.E.2d 87, 89 (1996) (trial court erred in refusing to instruct the jury on fraud theory that was supported by the evidence); Bowers v. May, 233 Va. 411, 413-14, 357 S.E.2d 29, 30 (1987) (rejecting challenge of trial court’s decision to instruct the jury on contributory negligence because the theory was supported by the evidence); Honsigner, 266 Va. at 274, 585 S.E.2d at 600 (2003) (“we will approve a trial court’s decision not to give an instruction that is duplicative of instructions already given”).

What to Do During and After an Auto Accident in Virginia

Tuesday, April 9th, 2024

Staying calm and keeping your wits about you during and after an auto accident in Virginia is no easy task. Accidents happen fast, and the events that unfold afterwards can happen just as fast. The situation can also be complicated by any number of additional factors: injuries, anxiety, and answering questions from numerous individuals.

There is no one-size-fits-all response that is appropriate in every auto accident. This is why it is vital to consult an experienced Virginia personal injury attorney as soon as possible, so you can get specific and tailored advice that takes into account the specific details of your circumstances.

There are some generalizations, however, that are true. Below are some tips and advice to aid you in confronting your accident and responding in the days and weeks that follow.

1. Control Your Vehicle

Proper response to an accident begins before the wheels stop spinning. Your first priority, greater than any consideration of liability or fault, is to survive the accident and minimize the chance you suffer significant injuries. When a collision occurs or is imminent, it is often the case that individuals simply freeze and stop driving the car. Never relinquish control of your vehicle. Do what you reasonably can to avoid the worst of the collision: take emergency action, and, if possible, navigate to safety entirely.

2. Assess the Situation

After the collision, monitor your surroundings and take appropriate action to prevent further accidents or injury. Can you safely move to the side of the road? Do you need to evacuate the passengers from the car and safely behind a guardrail? Can you place road flares or reflective triangles to warn oncoming motorists of the upcoming danger?

Further, you should assess your medical condition and that of your passengers or other individuals involved in the accident.

3. Call 911 or Appropriate Emergency Services

When safe to do so, call appropriate emergency services. Even if you feel that there are no injuries that warrant a trip to the emergency room, it still may a good idea to get checked out. It is better to be safe than sorry.

Responding police officers can help direct traffic in the area and ensure that you, your passengers, and other motorists on the road remain safe. Additionally, and especially if you aren’t at fault for the accident, having a neutral assessment of the manner and cause of the accident can help with later litigation. The responding officers may seek statements from the parties as well take photographs of the scene.

4. Carefully Consider Statements

When making statements, either to the police or to anyone else at the scene, carefully consider your words. While an accident and its immediate aftermath can be an extremely stressful time, it is important to try to calm yourself, get your wits about you, and avoid speaking from a place of hysteria or emotion.

It is extremely easy to make a statement that can be used against you later, especially when caught up in the emotion of the moment. Comments like “That guy came out of nowhere!” and “I didn’t even see her!” can be used to demonstrate that you failed to keep proper lookout. Also be careful with expressions of sympathy or apologies. While these statements on their own may not be an admission of guilt, these statements often accompany other statements that can be. For example, consider the statement “I am so sorry! I thought the way was clear!” The statement of sympathy may not be admissible against you, but your statement that you thought the way was clear likely would be.

5. Document the Scene

While responding officers may document the scene, it is not a good idea to completely rely on them. If you are medically able and it is safe to do so, it is a good idea to document the scene. This could include taking pictures of the vehicles and the damage caused by the collision. It can also including taking video (but pay careful consideration to what you say on the video, that audio lasts forever).

It is also important to remember that the “scene” is more than just the location of the accident. Proving your medical condition and your injuries associated with the accident will be vital during future litigation. Remember to record your condition, via video, pictures, and written recordings of your condition and experiences. It is easy to forget important things, especially when they are unpleasant and you wish you had never experienced them in the first place.

6. Seek Medical Attention

Don’t be a hero. You are not a medical expert. If you feel pain, you have no clue what the source of that pain is. You do not know the severity of the injury that is precipitating that pain. You do not know if you will recover, given enough time, or if this is just the start of a lifetime of pain and discomfort.

Seek medical attention. Lots of people have “toughed it out” only to discover much later that they were more injured than they thought they were. First and foremost, this would mean that you have suffered more than you had too. You have experienced pain and discomfort that a trained professional might have alleviated. More than that, you may have prejudiced your personal injury case. If there is a large gap between the accident and your medical treatment, you can bet that this will be use against you later.

7. Notify Your Insurance

As soon as you are able after an accident, you should notify your insurance company. Many insurance contracts require you to notify the company of an incident within a reasonable time. If you fail to do so, you can waive your coverage for the accident. You should also make sure that you are given the other driver’s insurance information.

8. Seek a Qualified Personal Injury Attorney

Finally, seek the tailored advice of a qualified personal injury attorney. While it is never too soon to seek competent legal counsel, sometimes it can be too late. Virginia has a two year statute of limitations that is nearly absolute. If you miss this deadline, your case is dead. It doesn’t matter how good your case is. It doesn’t matter how injured you were. If you miss this statutory deadline, you may miss your opportunity to seek compensation for your losses.

Again, while this is not intended to be an exhaustive checklist of how to respond to an auto accident in Virginia (no such checklist could ever be exhaustive), following these tips can help you respond to what will, in all likelihood, be a difficult situation. Those injured in an auto accident in Virginia would be wise to consult with a Virginia personal injury attorney who is familiar with all of the pitfalls associated with litigating this type of case. Plaintiffs in Southwest Virginia would do well to hire a personal injury lawyer in Roanoke, Virginia. There is no need to go through this alone.